Can Duterte be tried and convicted by the International Criminal Court?

Rappler, acting on its role as mouthpiece for the LP, came out with another article insisting that the International Criminal Court (ICC) can validly take jurisdiction over PRRD and charge him with atrocities connected with "murders" as a result of his war on drugs. The article came out as a rebuke to the NagaLeaks or a subtle threat perhaps. And it took a very long article to explain it.

You know why it was a long article? It is doing the very same thing the SC will do if they find it difficult to justify a ruling, make a very very long decision. I call it the "palabok" style. Damihan ng sangkap and hope na ma-impatso ang kakain at di na tapusin.

But the reality is, the ICC cannot just file a case against PRRD. The body has no legal jurisdiction or any moral ascendency to do so. Let me rebut every point raised by the Rappler article:

Rappler article said:
The doctrine responsibility or command responsibility placing PRRD directly responsible for all the drug-related murders is based on RA 9851 and the ICC Charter and hence, state immunity cannot be invoked. 

Wrong. The immunity of the President from suit is a CONSTITUTIONAL GUARANTEE. A law that runs counter to the fundamental law is invalid and unconstitutional. As for the ICC Charter, it is well-established in Ichong vs. Hernandez that the Constitution and the powers of the state cannot just be bargained away through a treaty.

Rappler article said:
PRRD is responsible for mass murder because as the chief executive, he failed to take necessary measures to properly exercise control over such subordinates. 

Wrong. As the head of the executive branch, PRRD has supervision and control over the operations of the PNP. It did not say absolute control because that cannot be done. He cannot be held liable for all the actions of the police especially if such was done in excess of their authority. If the order is, arrest but if the drug suspect fights back, shoot and kill but the police did not arrest but shot the suspect directly, those are not his orders. The President cannot be held responsible for the personal stupidity of his subordinates. And if you insist on making him liable, then prosecute Aquino first because all deaths committed by his subordinates during his term are also his fault.

The term "mass murder" is not even properly defined. And since the law did not define it, it should be understood in its ordinary signification. Hence, it means killing many people at a single moment. It is not even genocide because no specific race was targetted.

Rappler article said:
The ICC has to step in because the national law is unable to prosecute and it is only the CHR who can validly investigate the case. This  is based on the principle of complementarity. Hence, the ICC can intervene if the state cannot make the killings stop. 

This is so wrong in all levels. Let me reiterate that the ICC has a track record of being double-standard. It easily prosecuted African presidents for alleged acts of genocide but has not taken action in the US aggression against Iraq and Afghanistan. In short, it can only bully the states they can bully.

The insistence of the ICC that the CHR will investigate will not be acceptable due to two huge reasons. First, its Chairman is politicized being a known supporter of the opposition and an Aquino appointee. You cannot trust him to be fair. Second, the CHR is a constitutional anomaly. It is a toothless tiger. It can investigate but it has no prosecutorial powers. PRRD did not make the Constitution, blame those who made it.

So does it mean that the ICC can intervene because the state does not have mechanisms to prosecute Duterte?

No, the ICC cannot. The Philippines can prosecute its President. We have done it to Erap, GMA and hopefully PNoy. We have systems in place. It is just that we cannot prosecute PRRD now because he is still doing his job as our President. A necessity to grant him immunity so he can focus on his job at hand. So those who want to make him pay can wait until the end of his term to file these cases.

Lastly, on ICC intervening in order to put a stop to the killings, let me just put forward this challenge.

Before you dip your nose on the Philippine problem, why don't you first intervene in countries with a much higher rate of killings like Myanmar (save Aung San Suu Kyi), Venezuela, Colombia, Haiti and Mexico before acting like a whipping boy to our very minority opposition.


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Bruce V Rivera as posted on Facebook.